Contested Defenses
Affirmative defense for hazardous air pollutants released in accordance with National Emissions Standards for Hazardous Air Pollutants (NESHAP) by Robert Lishman
Grace sought to assert the affirmative defense that air pollutants were released in accordance with the applicable NESHAP. Specifically, Grace sought to introduce evidence that they complied with NESHAP standards in order to excuse criminal culpability under the Clean Air Act. The government argued this affirmative defense was inapplicable because no NESHAP standard applied to Grace’s Libby operations and thus compliance with a NESHAP standard was impossible.
The district court ruled in favor of Grace, finding that a standard of “no visible emissions” for asbestos applied and ruled that defendants could introduce evidence to show they complied with this standard. The ruling did not exclude any of the government’s evidence and thus the government was unable to appeal. Instead the government sought a writ of mandamus from the Ninth Circuit to overturn the district court’s decision. [1]   In this case the government sought to have the Ninth Circuit issue an order to the district court directing it to preclude Grace from asserting the affirmative defense. The Ninth Circuit Court of Appeals accepted the writ and agreed with the prosecution. The Ninth Circuit found that the plain language of the Clean Air Act made the affirmative defense inapplicable to this case because the defense applies only where the EPA Administrator has set an emissions standard for the pollutant. The Administrator had set several emissions standards for asbestos, which were source dependent. Some of these standards made no reference to “visible emissions” and there was no standard for asbestos releases from mining operations. Accordingly, the Ninth Circuit concluded that it was inconceivable that any alleged releases by Grace were “in accordance with that standard.”[2] The court granted the government’s writ. Thus, Grace cannot assert the affirmative defense at trial.
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[1] A writ of mandamus is an order issued by a court commanding that something be done.[2] U.S. v. W.R. Grace, 504 F.3d 745, 758 (9th Cir. 2007).